The invention in the late twentieth century of what I call weak-form systems of judicial review provides us with the chance to see in a new light some traditional debates within U.S. constitutional law and theory, which are predicated on the fact that the United States has strong-form judicial review. Strong- and weak-form systems operate on the level of constitutional design, in the sense that their characteristics are specified in constitutional documents or in deep-rooted constitutional traditions. After sketching the differences between strong- and weak-form systems, I turn to design features that operate at the next lower level. Here legislatures or courts specify whether their enactments or decisions will receive strong- or weak-form treatment. I examine examples of legislative allocations of issues to strong- and weak-form review and identify some practical and conceptual problems with such allocations. Then I examine judicial allocations - of the courts' own decisions - to strong- or weak-form categories. Here I consider Thayerian judicial review and what Professor Dan Coenen has called semisubstantive doctrines as examples of judicial choices to give their decisions weak-form effects. My conclusion is that these allocation strategies reproduce within strong- and weak-form systems the issues that arise on the level of constitutional design. Weak-form systems and allocation strategies may seem to alleviate some difficulties associated with strong-form systems in constitutional democracies. My analysis suggests that those difficulties may persist even when alternatives to strong-form judicial review are adopted.
101 Mich. L. Rev. 2781-2802 (2003)
Scholarly Commons Citation
Tushnet, Mark V., "Alternative Forms of Judicial Review" (2003). Georgetown Law Faculty Publications and Other Works. 259.
Reprinted from Michigan Law Review, August 2003, Vol. 101, No. 8. Copyright 2003 by Mark V. Tushnet.